Appeal No.	 EAT/1205/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 March 2001

Before
MISS RECORDER ELIZABETH SLADE QC
MRS T A MARSLAND
MRS D M PALMER

MR J A CAMERON	APPELLANT

KURT MUELLER (UK) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	MR C SPRATT
of Counsel
instructed by
MR JEREMY N YOUNG
Messrs Baily Gibson Solicitors
30 High Street
High Wycombe
Buckinghamshire HP11 2AG	

MISS RECORDER ELIZABETH SLADE QC

1	This is a Preliminary Hearing of an appeal against the decision of an Employment Tribunal which reduced the Applicant’s compensation and also awarded compensation on a basis which is the subject of the appeal.  The Tribunal made an order in the Applicant’s favour in the sum of £9,168.  The Applicant was a partner in a plastics mouldings business which he sold to a subsidiary of the Respondent company.  The Applicant, the Appellant before us, was Technical Director on a five year contract terminable at the end of five years and thereafter on six months notice.  Notice was given on 23 June 1999.  The Tribunal accepted the Respondent’s contention that the reason for the dismissal was redundancy.  That finding is not challenged in the appeal before us.

2	The Tribunal made certain observations in its Decision that there was no consultation with the Applicant or consideration of alternative employment.  The Tribunal observed that there were jobs available within the company which were within the technical abilities of Mr Cameron.  However, it went on to express the view that Mr Jones on behalf of the company might feel that these jobs were beneath the Applicant and the he might not have accepted them.  The Tribunal went on to observe that there were other positions within the company which were occupied by other workers which again Mr Cameron could have filled.  The Tribunal held the dismissal to be unfair.  It held that:

“There should therefore have been some selection criteria in order to identify what other jobs might have been relevant”

In the circumstances it held the dismissal unfair.  The Tribunal went on to direct itself as follows in paragraph 15:-  

“There was a possibility that the dismissal might not have happened had full proper procedures been followed.  However, the Tribunal must also consider under that case the possibility of a percentage likelihood that the dismissal would have happened in any event had proper procedures been followed.  If the Tribunal does so find then a percentage reduction to the compensatory award, not the basic award, may be applied if the Tribunal consider it just and equitable to do so”.

3	The case that the Tribunal refers to as authority for that proposition is Polkey v A E Dayton Services Ltd [1987] ICR 142.  The Tribunal, adopting that approach concluded in paragraph 16 of its decision:- 

 “The Tribunal therefore find that it was more likely than not that Mr Cameron would have been dismissed by reason of redundancy even if the correct procedures had been followed.  With this finding the Tribunal further finds that it is just and equitable that any compensatory award be reduced by 2/3rds, as the Tribunal concludes that is the likelihood of a dismissal for redundancy happening in any event”.

4	The Tribunal proceeded to assess compensation which they assessed on the basis of Mr Cameron’s then salary and other benefits.  However, it made its assessment of compensation on the basis that Mr Cameron was thinking of retiring at 62 and finding that his continuing to work until 65 was unlikely in that retirement would have occurred on his 62nd birthday.  Further, on the evidence that it heard, it expressed the belief in paragraph 28, that the business that Mr Cameron was engaged on after the termination of his employment would continue beyond the two months of Mr Cameron’s existing expectations, and it was on that basis that it calculated his continuing loss of salary.

5	The grounds of appeal challenge the approach of the Employment Tribunal in considering itself obliged to apply a percentage reduction to the compensation and to consider a percentage likelihood that the dismissal would have happened in any event had proper enquiries been made as to whether there was alternative employment which could have been offered to Mr Cameron, having regard to the likelihood that he would have accepted that employment.  The point is made that there is no material finding of fact upon which the Tribunal could base its finding in paragraph 16 and the reduction by two thirds of the compensatory award.  Further, as we have mentioned, there is challenge to the assumption that Mr Cameron would have retired at age 62 and also challenge to the basis of the length of time that Mr Cameron’s then business would have continued.  In our view the grounds of appeal do raise arguable points of law, particularly on the application of Polkey.

6	There does not seem to have been any finding of fact made as to the job which could or could not have been offered to Mr Cameron to enable the Tribunal to reach the conclusion that it did.  On that basis in particular, as well as the other matters raised before us, we consider that this is an appeal which is fit to go forward to a full hearing.  In reaching that conclusion we express no view, of course, one way or another, as to the strength of the grounds of appeal which are before us.